At issue is a proposal from the IP Enforcement Czar, backed by the White House, to upgrade illegal online streaming from a misdemeanor to a felony. The government currently treats unauthorized reproductions and distributions as potential felonies, giving it leeway to go after certain kinds of website operators that offer access to full downloads of music and movies.
Streaming is a little different; an online stream is not necessarily a “reproduction” or “distribution” under the Copyright Act, but is instead a “public performance.” And such unauthorized public performances are currently held to a different legal standard.
Why bother to change the law? In Pallante's view, the disparity only exists because, when Congress previously considered copyright changes, online streaming was not a major problem. Now, with increased bandwidth and more scrutiny of file-sharing networks, easy to use and less-traceable online streaming sites have grown hugely in popularity.
One might ask why it is not sufficient to prosecute streaming as a misdemeanor. The fact is, as a practical matter, prosecutors have little incentive to file charges for a mere misdemeanor. This means that compared to similar infringing conduct involving the large-scale making or distributing copies (e.g. DVDs of a movie), streaming is not only a lesser crime on the books, it is a crime that may never be punished at all. As a matter of policy, the public performance right should enjoy the same measure of protection from criminals as the reproduction and distribution rights; prosecutors should have the option of seeking felony penalties...